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Questions of State Succession Raised by the German Annexation of Austria

Published online by Cambridge University Press:  12 April 2017

James Wilford Garner
James Wilford Garner*
Affiliation:
University of Illinois
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Extract

The recent annexation of Austria to the German Reich (the terms “incorporation” or “absorption” are preferred by some) has raised certain questions of international law or practice with which other states have already had, or will have, to deal and upon some of which Germany also will be called upon to take a position. Among the questions already raised or which may be raised are the following: (1) Assuming that the annexation was brought about by the use of armed force against Austria without her consent and in violation of treaties or international law, should those states which have bound themselves by treaties not to recognize the validity of territorial annexations made under such circumstances, accord de jure recognition to the German annexation of Austria? (2) What effect did the annexation have on the status and obligations of Austria as a member of the League of Nations? (3) What effect did it have on the status of the treaties between Austria and other countries which were in force at the time of the annexation? (4) Did the application of Germany’s treaties with other states extend automatically, following the annexation, to the territory of Austria? (5) Is Germany bound by the generally recognized rules of international law to assume the payment of the debts of the former Austrian state, including those of the local governments of Austria?

Type
Research Article
Information
American Journal of International Law , Volume 32 , Issue 3 , July 1938 , pp. 421 - 438
Copyright
Copyright © by the American Society of International Law 1938

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References

1 The Anti-War Treaty of 1933 appears to have been ratified or adhered to by 24 other states, of which several are European, among them Italy.

2 Text in the New York Times of March 14, 1938.

3 See, for example, the announcement of the British Government, New York Times, April 3.

4 Texts of both notes in New York Times, April 7, 1938.

5 The former Emperor contends that his country is still a member of the League, and he recently tendered payment of its membership dues. The Secretary-General recently referred to the status of the Ethiopian delegation to the League as having been “provisional” since 1936. It is understood that the Assembly at its meeting in September next will reach a definitive decision as to the status of Ethiopia in its relation to the League.

6 The permanent delegate of Mexico to the League laid before the Secretariat at the time of Germany’s notification on March 20 that Austria had ceased to be a member of the League, a statement declaring that the League should not accept the annexation of Austria as a fait accompli without a vigorous protest and without taking the action provided for by the Covenant. He added that his own government refused to recognize the conquest of Austria: “The Mexican Government, in accordance with its consistent international policy,” said the note, “refuses to recognize any conquest made forcibly,” and it informs world public opinion that, in its view, “the only means of securing peace and preventing further international outrages such as those committed against Ethiopia, Spain, China and Austria is for nations to carry out the obligations laid on them by the covenant, the treaties they have concluded and the principles of international law.” Dispatch from Geneva, New York Times, March 22, 1938.

7 Of this amount $25,000,000 was floated in the United States by a syndicate headed by Morgan & Co., J. P. See “Austria: The Paralysis of a Nation,” Foreign Policy Reports, Vol. VIII, No. 22 (Jan. 4, 1933), p. 262.Google Scholar

8 Of this amount $25,000,000 was marketed in the United States through a syndicate headed by J. P. Morgan & Co.

9 Note of the Secretary of State, April 6, 1938, to the American Ambassador at Berlin, New York Times, April 7, 1938. This debt was evidenced by the agreement of May 8, 1930, between the United States and Austria and the moratorium agreement of Sept. 14, 1932.

10 Statement of Deuel, Wallace R., Berlin correspondent of the Chicago Daily News, March 21, 1938.Google Scholar

11 Public Debts and State Succession, New York, 1931.

12 Les Effets des Transformations des États sur leurs Dettes Publiques et Autres Obligations Financières, Paris, 1927.

13 Op. cit., pp. 302 and 311.

14 Ibid., p. 397 ff. Among them was Sir Erle Richards, who agreed with the Transvaal Concessions Commission and the decision of the English High Court in the case of the West Band Gold Mining Company that a conqueror is not obliged by any rule of international law to assume the “war” debts of a conquered state (“The Liabilities of a Conqueror,” 28 Law Magazine & Review (1903), p. 129), and who even denied the existence of any definite international rules of state succession. Another writer of this group was A. B. Keith, who rejected the whole theory of state succession and denied that states are legally bound to assume any (apparently) debts of states which they annex (The Theory of State Succession, with Special Reference to English and Colonial Law, London, 1907). His views appear to have been adopted by Sir F. E. Smith, International Law, 5th ed., p. 291. But this view was criticized by Westlake, Sir Frederick Pollock, Sir Thomas Barclay, Professor Oppenheim and other English writers who, sometimes with reservations, to be sure, accepted the general rule that an annexing state should take over the debts of the annexed state. Even the Transvaal Commission admitted that “the best modern opinion favours the view that as a general rule, the obligations of the annexed state towards private persons should be respected” (Report [South Africa, 1901, CMD 623], p. 7). Two continental writers who likewise rejected the theory of state succession and denied the existence of any rule of international law which requires one state to assume the debts of another state which it annexes were Zorn, Albert (Grundzüge des Völkerrechts, 1903, p. 150 ff.Google Scholar), and Schönborn, (Staatensukzession, 1913, pt. 2)Google Scholar. Strupp and P. Guggenheim adopted the same view, cited by Sack, p. 62. Gidel, while rejecting the theories of state succession and denying the obligation of an annexing state to take over the debts of an annexed state, nevertheless ad· mitted its liability to the extent to which it has been unjustly enriched in consequence of the annexation (Des Effets de l’Annexion Sur les Concessions, 1904).

15 Op. cit., p. 87.

16 Phillipson, , Termination of War and Treaties of Peace, p. 42.Google Scholar

17 The details of the above and other cases in which annexing states took over the debts of states annexed by them may be found in Feilchenfeld, op. cit., p. 263 ff., and in Sack, op. cit., p. 264 ff. See also Appleton, Des Effets des Annexions de Territoires sur les Dettes, sec. 9 ff.

18 As to French practice regarding the debts of colonial territories and protectorates, see Feilchenfeld, op. cit., p. 369 ff.

19 Details of the whole procedure in I Moore, Digest of International Law, p. 343 ff., and in Feilchenfeld, op. cit., p. 271 ff.

20 I Moore, op. cit., p. 351.

21 Feilchenfeld, op. cit., p. 376, who cites Buell, , The Native Problem in Africa, Vol. II, p. 447 Google Scholar, as authority for the opinion that the interpretation adopted was due to the widespread opposition in Belgium to the annexation.

22 As to the reasons given by Great Britain for refusing to assume the debts of the Fiji Islands, see Feilchenfeld, op. cit., p. 290 ff.

23 Award in the case of the Hawaiian Claims, Nielsen’s Report, p. 160.

24 They were: the Treaty of Aug. 24, 1921, Establishing Friendly Relations; that of Jan. 12, 1926, for the Reduction of Passport Fees for Non-Immigrants; that of Aug. 16, 1928, relative to Arbitration, and one of the same date relative to Conciliation; that of Jan. 31, 1930, relating to Extradition (to which there was a supplementary agreement of 1934); and the Treaty of Jan. 20, 1931, on Friendship, Commerce and Consular Rights (to which there was a supplementary agreement).

25 See Strupp,, II Jahrbuch des Völkerrechts, p. 566 Google Scholar, where a list of the treaties entered into by the German Länder may be found. See also Elben, Die Staatsverträge Würtembergs mit nicht Deutschen Staaten. Article 78 of the Weimar Constitution declares that “in those matters which the diets of the Länder have power to regulate, the Länder may conclude treaties with foreign states, subject however to the consent of the Federal Republic.”

26 As to the treaty-making power of the Swiss Cantons see His, in 10 Revue de Droit Int. et de Lég. Comparée (1929), p. 454, and Huber in this Journal, Vol. 3 (1909), p. 62 ff.

27 Oppenheimer, The Constitution of the German Republic (1923), p. 29; see also Schiffer, and Wilcox, , “Treaty-Making in Post-War Germany,” this Journal, Vol. 30 (1936), p. 216.Google Scholar

28 I Traité de Droit Int., p. 368.

29 Cours de Droit Int. Pub., p. 103.

30 II Traité de Droit Int., p. 518.

31 Principes de Droit Int. Pub., sec. 353.

32 Droit Int. Cod., Art. 50.

33 Droit Int. Cod., Art. 143 n.

34 See in addition to the authors cited above: Crandall, Treaties: Their Making and Enforcement, 2nd ed., p. 430; Huber, , Die Staatensuccession, p. 151 Google Scholar; Fauchille, , 1 Droit Int. Pub. , pt. I, p. 345 ff.Google Scholar; Otétéléchano, , De la Valeur Obligatoire des Traités Int., p. 80 Google Scholar; Kiatibian, , Conséquences Juridiques des Transformations des États sur les Traités, p. 22 Google Scholar; Larivière, , Des Conséquences des Transformations Territoriales des États sur les Traités Antérieures, p. 119 ff.Google Scholar; Crusen, , Les Servitudes Internationales, 22 Acad. de Droit Int., Bec. des Cours, p. 64 ff.Google Scholar; Reid, , International Servitudes in Law and Practice (1932)Google Scholar.

35 For example the Elbe toll exemption provision in the treaty of Nov. 6, 1861, between the United States and Hanover which was annexed to Prussia in 1861. Crandall, op. cit., p. 431. Also the servitude of non-fortification of the Alsatian town of Huningen established in favor of Switzerland by the Treaty of Paris of 1815, which was admitted by Germany and France in turn to have survived the annexation of Alsace-Lorraine to Germany in 1871 and its re-annexation to France in 1919. I Oppenheim, Int. Law (4th ed.), p. 207, and Crusen, op. cit., p. 65. See also the Case of the Aaland Islands, the demilitarization of which by the Convention of 1856 between Great Britain, France and Russia was held to have survived the transfer of the Islands from Russia to Finland in 1919. McNair, , British Year Book of International Law, 1925, p. 125 Google Scholar, and De Visscher, , “La Question des Îles d’Aaland,” Rev. de Droit Int. et de Lêg. Comparée, Vol. II, 3rd ser. (1921), p. 35 ffGoogle Scholar. As to the contention of the United States regarding its rights under Art. 24 of the Convention of Nov. 18, 1903, with Panama, which are said to be in the nature of “a covenant which runs with the land,” see Reid, , International Servitudes in Law and Practice, p. 134 Google Scholar. Liszt, , Das Völkerrecht, p. 192 Google Scholar, asserts that when the Congo State was annexed to Belgium the latter state succeeded to the obligations relative to the neutralization of the Congo territory which had been imposed upon that state by the Act of Berlin of 1885 (Art. 10).

36 See 5 Moore, , Digest, p. 345 ff.Google Scholar; Hyde, , “The Termination of Treaties of a State in Consequence of Its Absorption by Another,” this Journal, Vol. 26 (1932), p. 133 Google Scholar; and Foreign Relations of the United States, 1912, p. 632.

37 Compare the opinion of a writer in 17 Rev. de Droit Int. Privé (1921), P. 311 ff., who, after reviewing the jurisprudence of the French courts relative to the extension of the treaties of France to Alsace-Lorraine following the return of these provinces in 1918, maintains that treaties in such cases extend to territory annexed unless it was the intention of the parties to limit their application to the territories which they possessed at the time the treaties were concluded. He cites Chrétien, Piédelièvre, Bry, Despagnet, Merignac and Fauchille in support of this proposition.

Compare in the same sense Hyde, op. cit., II, p. 85, and Kiatibian, op. cit., p. 79. In fact, both Great Britain and the United States considered the reciprocity provisions of Art. 21 of the Treaty of May 8, 1871, relative to the Free Entry of Fish Products of Canada and the United States into the territory of the other, inapplicable to British Colombia after the admission of that Province into the Dominion of Canada. 5 Moore, Digest, p. 353.

38 Péritch, , 28 Acad, de Droit Int., Ree. des Cours, p. 402.Google Scholar

39 As to this, see Crandall, op. cit., p. 432; 5 Moore, , Digest, p. 355 Google Scholar; Terlinden v. Ames, 184 U. S. 270; Flensburger Dampfercompagnie v. U. S., this Journal, Vol. 26 (1932), p. 618 (U. S. Court of Claims); Rickmers Lederer Aktiengesellschaft v. U. S., 45 Fed. (2nd), p. 418; note by Borchard, this Journal, Vol. 26 (1932), p. 582; and Liszt, op. cit., p. 193.

40 21 Op. Atty. Gen. 81, quoted by Crandall, op. cit., p. 432, n. 25.

41 Text of President’s letter to Secretary of Treasury, New York Times, April 8,1938.